Property Law and Real Estate Commons^™

Assessing Abandoned Mining Land Reclamation Fees On Coal, Deborah S. Colby

West Virginia Law Review

No abstract provided.

Extending The Benefit Of An Easement: A Closer Look At A Classic Rule—Brown V. Voss, 105 Wn. 2d 366, 715 P.2d 514 (1986), Pamela Mcclaran

Washington Law Review

In Brown v. Voss the Washington Supreme Court considered whether an easement may be extended to benefit a nondominant parcel. The court endorsed the classic property rule that the benefit of an easement may not be extended by the dominant parcel owner to benefit other parcels. Furthermore, the court declared that any extension of an easement to benefit a nondominant parcel would be a misuse of the easement. Nevertheless, after weighing the relative hardship to the parties, the court refused to enjoin the extension of the easement where the resulting hardship to the dominant parcel would greatly exceed the benefit …

Tenant Remedies For Breach Of Habitability: Tort Dimensions Of A Contract Concept, Jim Smith

Scholarly Works

This article advances the premise that the hybrid contract-property model of leases may be appropriate to provide flexible choices for many areas of landlord-tenant law and, perhaps, may be suitable as a general model, but that it has failed as applied to the question of the tenant's remedies for breach of the warranty of habitability. As applied to remedies, the contract-property hybrid is a false dichotomy, or perhaps more accurately, the wrong dichotomy. The proper analysis of tenant remedies when the landlord breaches the habitability duty requires that a line be drawn between the tort duties and the contract duties …

Freeing Mortgages Of Merger, Ann M. Burkhart

Vanderbilt Law Review

Change in real property law often occurs with glacial speed.This rate of change in part reflects the normal inertia of established law. A more complete explanation, however, is the innate conservatism connected to a commodity that once was the primary source of wealth and power. That this conservatism is innate should not prevent application of Ockham's razor as needed. The relationship of the doctrine of merger to the burgeoning law of mortgages is one such area. "If the law has to bear these medieval shackles the time surely has come to examine them carefully. They may have rusted away."

The …

New York Debates Commercial Rent Control: Designer Ice Cream Stores Versus The Corner Grocer, John J. Powers

Fordham Urban Law Journal

This Note will review the history of commercial rent regulation in New York City and examine existing commercial rent regulation proposals, both in terms of their underlying goals and their methods of operation. The Note will argue that, as a matter of general economic and public policy, the legislature should not enact commercial rent regulations. In light of these policy considerations, the Note will then examine specific conclusions of the Commission in its Final Report and its assessment of proposed strategies to deal with the problem related to the escalation of commercial rents for small businesses and neighborhood consumers in …

Unconscionability - Real Property Lawyers Confront A New Problem, 21 J. Marshall L. Rev. 1 (1987), Robert Kratovil

UIC Law Review

No abstract provided.

Property, Gerald Bobango

West Virginia Law Review

No abstract provided.

Property Law - A Fresh Look At Contractual Tenant Remedies Under The North Carolina Residential Rental Agreements Act - Miller V. C.W. Myers Trading Post, Inc., Johnny Foster

Campbell Law Review

This note will examine some of the other contractual remedies that the North Carolina courts could make available to tenants for breach of the implied warranty of habitability. The Miller case suggests that the courts would hold that some of these remedies are available under the Act but that others are not. This note will address the issues of why some of these remedies should or should not be available under Miller and the Act. Since the North Carolina courts seem to be willing to consider other remedies under the Act, lawyers who represent North Carolina tenants should familiarize themselves …

Economic Due Process And The Takings Clause, John A. Humbach

Elisabeth Haub School of Law Faculty Publications

The discussion which follows will examine the new verbalizations repeatedly employed in Supreme Court takings decisions of the past decade and the Court's enlistment of the just compensation requirement as a basis for undertaking substantive review of legislation. As an introduction, the distinctive historical roles and roots of the substantive due process and just compensation requirements will be reviewed.

The Public Trust Doctrine In Washington, A. Reid Allison Iii

Seattle University Law Review

This Article addresses questions of resource allocation and property rights, first, by presenting a brief description of the historical and legal foundation of coastal resource allocation in the United States: the “public trust doctrine.” Second, a survey of the Washington experience demonstrates, surprisingly, that a state whose 2,337 miles of marine coastline approximately equals the length of the entire remaining coastline of the contiguous western United States, has managed to establish a viable and responsive regulatory regime governing coastal resource use with scarcely a mention in its laws of the “public trust doctrine.”

The Effect Of Tax Foreclosure Sales On Servitudes: Olympia V. Palze, Daniel W. Galvin

Seattle University Law Review

This Note analyzes the historical position taken by Washington courts regarding servitudes and tax sales prior to and subsequent to the 1959 statute dealing with easements. The Note next examines the Palzer holding, the degree to which it aligns Washington's position with that of the majority, and its limited support for future litigation involving other forms of servitudes.

The Real Estate Broker And The Buyer: Negligence And The Duty To Investigate, Paula C. Murray

Villanova Law Review (1956 - )

No abstract provided.

The History Behind Hansberry V. Lee, 20 U.C. Davis L. Rev. 481 (1987), Allen R. Kamp

UIC Law Open Access Faculty Scholarship

This Article provides the factual background to Hansberry v. Lee, the famous class action case. During the early 1900's, Chicago's black population was kept effectively segregated, primarily through the use of racially restrictive covenants. However, in the 1930's, this system began to break down. The growth of the black population caused an increased demand for black housing, while the Depression reduced the market for white housing. It was at this time that Carl Hansberry bought a house that was covered by a restrictive covenant, generating a lawsuit to have the covenant enforced and the Hansberrys evicted.

Tracing the lawsuit as …

The Recovery Of Shipwrecks In International Waters: A Multilateral Solution, Elizabeth Barrowman

Michigan Journal of International Law

This Note will examine the current state of international law concerning property rights to all types of wrecks discovered in international waters. It will show that a multilateral convention is needed to establish an international framework for property rights to shipwrecks of historical and archaeological value, to wrecks of military vessels, and to wrecks of commercial ships such as the Titanic. There may be obstacles to the establishment of a multilateral convention, but the international community must provide certainty to ownership questions, furnish protection for submarine antiquities, and prevent disputes arising from the wrongful salvage of military vessels.

Department Of Real Estate, S. Strand

California Regulatory Law Reporter

No abstract provided.

Land Title Registration: An English Solution To An American Problem, C. Dent Bostick

Indiana Law Journal

No abstract provided.

Clearing The Air On Radon Testing: The Duty Of Real Estate Brokers To Protect Prospective Homebuyers, Sheldon Winicour

Fordham Urban Law Journal

This Note recommends that the federal government create legislation that will impose a duty on real estate brokers to test homes for radon and to disclose the results to prospective purchasers. Based on a common law negligence theory, such a duty would become part of the current obligation of a real estate broker: (1) to conduct a reasonably diligent and competent search of property for sale; and (2) to disclose to prospective homebuyers all material defects affecting the value or desirability of the home. In his investigation, the broker must use the expertise and knowledge that derive from his training …

A Common Law For The Statutory Era: The Right Of Publicity And New York's Right Of Privacy Statute, Frederick R. Kessler

Fordham Urban Law Journal

This note compares New York's privacy statute with the common law right of publicity. The article first traces the history of each law, then goes on to compare their effects. The author argues that exploitation of persona warrants judicial recognition of a common law right of publicity in New York, despite the argument that the creation of such a right should be left to the discretion of the legislature.

The New Illinois Mortgage Foreclosure Law And Installment Sales Contracts, Victor Grimm

Loyola University Chicago Law Journal

No abstract provided.

Antitrust Implications Of Municipal Land Use Planning, Victoria M. Mather

Faculty Articles

Congress enacted the Local Government Antitrust Act of 1984 in response to outcomes in many well-publicized cases and from widespread criticism of the state action doctrine as applied by the courts. The state action exemption as used by the courts today is riddled with analytical and practical problems. The Local Government Antitrust Act of 1984 shields municipal governments from monetary damage awards for violations of antitrust laws, but the act did not go far enough.

A few state legislatures have either considered or enacted statutes protecting municipalities from state or federal antitrust liability. However, preemption analysis is problematic because it …

Pyrrhic Victory: Daniel Goldman's Defeat Of Zoning In The Maryland Court Of Appeals, Garrett Power

Faculty Scholarship

Nowadays government regulation of the use of urban land is taken for granted. Such was not always the case. Some sixty years ago, the Maryland Court of Appeals held it unconstitutional for Zoning Commissioner J. Frank Crowther to deny a request for a permit to operate a tailor shop in the basement of a Eutaw Place home. This paper examines the case of Goldman v. Crowther. Goldman's story reads like a comic melodrama with a tragic ending. But the saga also illuminates the social condition - it sheds light and casts shadows on the practice of xenophobia, the nature …

Strict Liability For Chattel Leasing, Richard C. Ausness

Law Faculty Scholarly Articles

Leasing has become an increasingly popular substitute for outright purchases as a means of acquiring products for use. Few courts and commentators, however, have addressed the question of whether the principles of strict products liability which apply to sellers also apply to lessors. In this Article, Professor Ausness reviews the historical basis for imposing strict liability in tort on sellers and applies these rationales to five basic kinds of lease transactions. He concludes that strict liability should not apply when a product defect arises after the leased product is placed in the hands of the lessee (as contrasted with the …

Comments On The Historiography Of Condominium: The Myth Of Roman Origin, Robert G. Natelson

Faculty Law Review Articles

This article seeks to dispel the common perception that the condominium is an institution peculiarly Roman. The article attempts to set the record straight and to trace a course of events that is symptomatic of underlying problems in American legal scholarship.

Part II outlines the considerations which render it improbable that anything like modern condominium existed in Roman civil law. Part III is a short sketch of the actual history of condominium. Part IV traces the process by which the fable of Roman origin crept throughout American legal literature. Part V explains, in reverse chronological order, how a now-discredited European …

Mending The Social Compact: Expectancy Damages For Common Property Defects In Condominiums And Other Planned Communities, Robert G. Natelson

Faculty Law Review Articles

This article examines one of the most significant forms of common property lawsuits that has resulted as the number of planned communities has grown -- the action against the community developer for alleged construction defects and plaintiff's seeking expectancy damages. Noting that an adequate guide for measuring expectancy damages in common property defects cases has not yet been developed, this article suggests several mechanisms by which damages in these cases can be measured and allocated in a straightforward manner.

Constitutional Limits On The Power To Take Private Property: Public Purpose And Public Use, John A. Humbach

Elisabeth Haub School of Law Faculty Publications

The rights/freedoms dichotomy tacitly permeates Supreme Court ‘takings' jurisprudence, and it has an explanatory power which extends to virtually all ‘takings' cases decided by the Court. Its explanatory power does not, however, extend to the relatively few cases which involve the taking of ‘rights' for purely private use, that is rearrangements of existing private property rights, as opposed to takings for use by the government or its designees in some public service function. Because rearranging the existing pattern of private ownership takes ‘rights' and not mere ‘freedoms,’ we might expect, according to the rights/freedoms pattern, that the Court would uniformly …

Implementation Of Enacted Title By Registration Legislation In The Maritimes, Robert Tj Stein

Dalhousie Law Journal

Since my first contribution to this Journal upon the topic of title by registration,' it is possible to report a further cascade of ink; the pilot project in Prince Edward Island, which was examined, has produced two statutes: (1) Land Titles Act, Nova Scotia;2 (2) Land Titles Act, New Brunswick.3 The Nova Scotia Act remains unproclaimed and makes no repeal of the first attempt at title by registration in 1903-4 which failed to obtain substantial converts even though proclaimed. 4 New Brunswick has taken the great leap into the unknown by proclaiming its statute on 1st January, 1984;5 amending it …

Annual Survey Of Virginia Law: Property, W. Wade Berryhill

University of Richmond Law Review

This year, the courts decided many property law issues of interest to the general practitioner. Section I discusses cases from the federal district and circuit courts, as well as the Virginia Supreme Court and the Virginia Court of Appeals. The 1987 session of the General Assembly resulted in several changes affecting property laws in Virginia. Section II lists the most significant statutes.

0451: Savage Grant Cabell Co. Clerk Recrods, 1754-1929, Marshall University Special Collections

Guides to Manuscript Collections

Descriptions of the sixty-one lots that made up the original Savage land grant.

Municipal Lease-Purchase Agreements: A Virginia Perspective, R. Webb Moore

University of Richmond Law Review

America's state and local governments are in a fiscal vise. Federal intergovernmental aid reached a high water mark in fiscal 1979, but subsequent cutbacks by President Reagan and Congress brought the era of rapid growth in federal domestic spending to a screeching halt in 1981 with reductions of over fifty-three billion dollars in budgetary authority and thirty-five billion dollars in budgetary outlays. Local governments have responded by taking one of three fiscal paths: (1) forced austerity, resulting in school and library closings, deteriorating infrastructure, elimination of mass-transit systems and benefit and personnel cuts; (2) an increased dependence on local tax …

New Steps To Preserve The Old: The Revised Historic Preservation Legislation For The City Of Philadelphia, Charlotte E. Thomas

Villanova Law Review (1956 - )

No abstract provided.